On appeal from a Final Determination of the New Jersey State Real Estate Appraiser Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Chambers and Waugh.
Appellant John M. Mehr appeals from the final order of discipline entered by the New Jersey State Real Estate Appraiser Board on June 26, 2007. His primary argument on appeal is that the Board failed to afford him an administrative hearing prior to imposing discipline. He also argues that the Board's factual and legal determinations are not supported by the record. We affirm.
The Board's disciplinary action arose out of a random audit of continuing education compliance performed in 2006. N.J.A.C. 13:40A-5.3 requires the completion of twenty-eight credit hours of continuing education prior to license renewal. It does so by requiring its licensees to comply with continuing education requirements established through a federal program, discussed below, enacted to oversee state regulation of real estate appraisers.
The Board's audit sought documentation from the selected licensees to verify that they had actually taken the required credit hours and distribution of courses prior to renewing their licenses for the 2006-2007 biennial licensing period. Mehr, a certified real estate appraiser licensed by the Board, was one of the 640 licensees, chosen at random, asked to submit proof of compliance.
Mehr's response to the Board demonstrated that he had taken only seven credit hours prior to the renewal of his license on November 20, 2005, twenty-one credit hours short of the requirement. Consequently, at the time he renewed his license in November, he had not complied with the continuing education requirements in terms of timeliness, distribution requirements and number of credit hours.
Following further investigation, the Board initiated disciplinary proceedings by issuing a provisional order of discipline. According to the Board's proofs, which were in the form of certifications attached to the provisional order, Mehr renewed his license on-line. He responded affirmatively to the following question: "Have you completed the continuing education requirement during the past two years?" He also responded affirmatively to a question about whether he had taken a specific type of required course. Neither answer was factually accurate at the time of renewal.
An attachment to the certification of the Board's investigator showed Mehr's license number on the computer renewal record, along with his responses to those two questions. A certification from the Information Technology Manager at the New Jersey Division of Consumer Affairs stated that the on-line renewal screen contained the following language:
I understand that by clicking Submit Answers I am certifying that all the information on this form is true and complete to the best of my knowledge and further acknowledge that if the above information is willfully false, I am subject to punishment and/or disciplinary sanction including license suspension/revocation or the imposition of civil penalties as may be provided by law.
The certification also stated that it was not possible to renew the license on-line without clicking the "Submit Answers" button.
The provisional order, which was issued by the Board on March 21, 2007, proposed that Mehr be disciplined as follows:
(1) suspension of his license pending completion of the required courses, (2) a public reprimand and (3) a civil penalty in the amount of $1,750. The proposed discipline was premised on violations of N.J.S.A. 45:1-21(b), (e) and (h), which provide as follows:
A board may refuse to admit a person to an examination or may refuse to issue or may suspend or revoke any certificate, registration or license issued by the board upon proof that the applicant or holder of such certificate, registration or license:
b. Has engaged in the use or employment of dishonesty, fraud, deception, misrepresentation, false promise or false pretense;
e. Has engaged in professional or occupational misconduct as may be determined by the board;
h. Has violated or failed to comply with the provisions of any act or regulation administered by the board[.]
The provisional order notified Mehr that it would issue a final order in thirty business days "unless respondent requests a modification or dismissal." He was instructed to send any such request to the secretary of the Board and that it should "set forth in writing any and all reasons why said findings and conclusions should be modified or dismissed or arguments in mitigation." The order did not specifically require that the factual aspect of the submission be in the form of a certification or ...